A Moment of Introspection

By: Mark Webb

Earlier this month, the Centers for Disease Control and Prevention (CDC) announced it was undertaking a complete review of its operations in light of its response to the Covid-19 pandemic. The review commenced April 11th and is scheduled to last all of one month. The point of the review, apparently, is to ascertain how the CDC structure limits its ability to respond to rapidly changing science and demands for guidance. The results of this will be welcomed by many in the workers’ compensation community.

As we move to an “endemic” Covid-19, predicted to be much like a seasonal flu, the CDC is not the only arm of government that should be taking a moment to make sure Covid-19 is not treated as a public health pandemic crisis after it has stopped being one.

Specifically, there are a number of bills still moving through the California Legislature that, if chaptered, would not become effective until January 1, 2023. This includes Assembly Bill 1751 by Tom Daly (D-Orange County) which currently extends the Covid-19 presumption of compensability as written in Senate Bill 1159 by Jerry Hill (D-San Mateo) in 2020 until January 1, 2025. This list also includes Senate Bill 213 by Dave Cortese (D-Santa Clara) creating permanent presumptions for workers who provide direct patient care in acute care hospitals for a wide range of conditions, including Covid, and Senate Bill 1127 Toni Atkins (D-San Diego) which would shorten the timeframes for making compensability determinations, and shorten drastically the investigative time for claims of presumptive injuries. SB 1127 clearly would affect Covid claims, assuming it and AB 1751 get to Governor Newsom’s desk, and he signs them.

The Cal OSHA Standards Board will soon readopt for the third time the Covid-19 Emergency Temporary Standard (ETS). It falls into this category as well. With each iteration, the ETS becomes more of an alter-ego of CDC Guidance funneled through California’s emergency rulemaking process. As CDC looks to streamline its operations and make it more agile in times of crisis, should not the same rethinking of what has happened over the past two years happen at Cal/OSHA?

And speaking of third readoptions, consider Assembly Bill 2693 by Eloise Gomez Reyes (D-Fontana) relating to notifications and reporting by employers of Covid-19 cases.  This began as Assembly Bill 685 (Reyes), chaptered in 2020 and scheduled to sunset on January 1, 2023. However, last year Assembly Bill 654 (Reyes) amended AB 685’s provisions dealing with a number of issues of concern by both labor and employers. It too sunsets on January 1, 2023.  Should AB 2693 get chaptered, it would sunset on January 1, 2025.

So, it would appear that as far as Sacramento is concerned, much of the pandemic environment will exist even if the virus that triggered its creation no longer presents a public health crisis.

And that is the real danger in the current debate. The workers’ compensation system responded well, and in accordance with the risks presented in the workplace. It did so without the need for presumptions. Concerns over whether this would morph workers’ compensation into a health care program it was never intended to be were overblown.

But if CDC treats seasonal Covid as it would seasonal flu, and policymakers open the door to making common seasonal illnesses presumptively compensable, then the key to Pandora’s Box may have unfortunately been found.


Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.